FREEDOMS

 

Membership in trade union

​

5 Every person is free to join a trade union of the person’s own choice and to participate in its lawful activities. 1995, c. 1, Sched. A, s. 5.

 

Card-based certification

 

Card-based certification is unique to the construction industry in Ontario. Under the card-based system, if the union can demonstrate that more than 55% of the employees who were at work on the application filing date were doing bargaining unit work, and are members of the trade union, then the Board may certify the union without holding a vote. The Board can also direct a vote (as described below); however, in our experience the Board usually does not do this. Remember, it is only the employees who were at work on the application filing date who are counted. It might be that you have 500 employees, but if only 4 of them were working on the application filing date (for example, on Christmas Eve) and three of them signed union membership cards, then the Board can certify the union based on the support of only those three employees.

 

Vote-based certification

 

Under the vote-based system, if the union can demonstrate that it has signed membership cards from at least 40%, but less than 55%, of the employees who were at work on the application filing date, and who were doing bargaining unit work, the Board will order a vote. This vote will take place within 5 business days of the application filing date. Before the pandemic, these votes were held in-person. Now, they are held electronically, either by phone or internet. If the majority (i.e., 50% +1) of voters vote in favour of the union, the Board will (absent exceptional circumstances) certify the union. Keep in mind that there might be 50 people in the bargaining unit, but if only 20 of them vote, then 11 of them can make the decision. When the organization performs work in certain sectors of the construction industry, such as in the industrial, commercial and institutional (“ICI”) sector, unionization means the organization is automatically bound to an existing collective agreement that covers the type of work being performed - there is no negotiation!

 

UNFAIR PRACTICES

 

Employers, etc., not to interfere with unions

70 No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence. 1995, c. 1, Sched. A, s. 70.

 

Employers not to interfere with employees’ rights

 

72 No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

 

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

 

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act. 1995, c. 1, Sched. A, s. 72.

 

Duty of fair representation by trade union, etc.

 

74 A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be. 1995, c. 1, Sched. A, s. 74.

 

Duty of fair referral, etc., by trade unions

 

75 Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith. 1995, c. 1, Sched. A, s. 75.

 

Intimidation and coercion

 

76 No person, trade union or employers’ organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers’ organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act. 1995, c. 1, Sched. A, s. 76.

 

Persuasion during working hours

 

77 Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employee’s working hours to become or refrain from becoming or continuing to be a member of a trade union. 1995, c. 1, Sched. A, s. 77